State Bar of Wisconsin

Message From the Chair – Section Hosts Several CLE Programs; De Novo Bids Editor Farewell

By Anne Berleman Kearney, Appellate Consulting Group

Welcome,

I welcome you to this edition of De Novo with a nod to the past and a nod to the future. The nod to the past comes in expressing our gratitude to Nancy Kopp, who is ending her tenure as editor of this first-rate De Novo newsletter. We literally would not have had the benefit of this asset to our Section these past years but for Nancy’s talent and dedication. Thank you, Nancy.

The nod to the future is in sharing with you the vitality of our Section’s membership and programming. Thank you to all those members who have offered to participate in the Section’s committees. We accept! The chairpersons of the committees will be contacting you. For example, the Rules Committee looks to be quite active this year. There are a number of rule petitions in the pipeline and I look forward to that information being shared with the Section (hopefully, through a reenergized Section email list). Certain rules affecting appellate practice, which go into effect Nov. 1, 2009, are highlighted in this edition of De Novo.

We also look forward to an active year in programming. On Oct. 30, 2009, the Appellate Practice Section will co-sponsor a conference organized by Marquette University Law School on the Wisconsin Supreme Court, which will review the Court’s decisions and preview its cases. I am excited that we will be part of this event. An article in this edition of De Novo provides a preview of what promises to be an engaging program.

We are in the beginning phases of planning our Appellate Practice Workshop. This program has been on hiatus for some years, but we expect to bring it roaring back. The goal of this hands-on workshop is to give practitioners the opportunity to write an appellate brief and to participate in oral argument in an atmosphere of experimentation and comment, rather than that of a high-stakes suit. We have been lucky to have an excellent faculty of judges and practitioners in prior years for the event. It has drawn rave reviews in the past and we are aiming for the same this time as well.

Last, we are pleased to announce that the Appellate Practice Section, with the Professionalism Committee and, of course, the State Bar, will be hosting a showcase program at the May 2010 State Bar Convention that features retired U.S. Supreme Court Justice Sandra Day O’Connor. This program will speak to the very timely issue of judicial recusal, its ramifications on appellate and trial court practice, as well as to broader issues regarding judicial independence. The convention will be at the Monona Terrace Convention Center, May 5 - 7, in Madison.

I look forward to seeing you at these events and to hearing your comments and suggestions.

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Section Co-Sponsors Program on Wisconsin Supreme Court on Oct. 30

By Jake Wittwer, Law Clerk to Judge Paul Higginbotham

The Appellate Practice Section is co-sponsoring a one-day program entitled Conference on the Wisconsin Supreme Court: Review and Preview, on Friday, Oct. 30, at Marquette University Law School. The program has been submitted for five CLE credits. Tuition is $40, including lunch.

The event, featuring U.S. Circuit Court Judge Diane Sykes and U.S. District Court Judge Lynn Adelman and other distinguished panelists, will review the Wisconsin Supreme Court’s 2008-09 term and preview the term that began in August. It also promises to address the ongoing debate about the proper role of the Court, and the potential impact of the U.S. Supreme Court’s 2009 decision in Caperton v. A.T. Massey Coal Company on matters of judicial recusal and on future campaigns for the state’s High Court. Read a summary of Caperton.

“This conference brings together academics and practitioners to discuss topics of importance to lawyers and the larger community,” says Section Chair Anne Berleman Kearney. “We are pleased as a Section to co-sponsor this event.”

Panels will discuss the court’s recent decisions and cases coming before the court this term in the areas of business law, torts, and product liability; substantive and procedural criminal law; and public law. In addition to judges Sykes and Adelman, panelists scheduled to participate include: Michael B. Brennan, Gass Weber Mullins LLC; Leonard G. Leverson, Leverson & Metz SC; Lester A. Pines, Cullen Weston Pines & Bach LLC; and Karyn L. Rottker, American Civil Liberties Union Foundation of Wisconsin; professors Richard M. Esenberg, Edward A. Fallone, John J. Kircher, Chad M. Oldfather, and Michael M. O’Hear of Marquette Law School; and Marquette Adjunct Professors Anne Berleman Kearney, Appellate Consulting Group; Thomas L. Shriner Jr., Foley & Lardner; Dean A. Strang, Hurley Burish & Stanton; Timothy S. Trecek, Habush Habush & Rottier SC, and Ralph A. Weber, Gass Weber Mullins LLC.

Space is limited, and those interested in attending are encouraged to register by Oct. 16. If you have questions about the conference, contact Marquette Law School Assistant Dean for External Relations Christine Wilczynski-Vogel at (414) 288-3167.

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Notes from the Clerk's Office: Amendments to Rules Re Motions for Reconsideration, Effective Nov. 1

By David R. Schanker, Clerk, Wisconsin Supreme Court/Court of Appeals

On June 19, 2009, the Wisconsin State Legislature enacted amendments to the Rules of Appellate Procedure that change the effect of the filing of a Motion for Reconsideration in the Court of Appeals on the deadline for the filing of a Petition for Review in the Supreme Court. This change (along with several unrelated rules amendments) is the result of a long effort by the Appellate Practice Committee of the Wisconsin Judicial Council. The effective date of the Act (2009 Wisconsin Act 25) is Nov. 1, 2009. Read the full text of the Act.

Under the current rules, a petition for review must be filed in the Supreme Court within 30 days of the date of the decision of the Court of Appeals, whether or not a motion for reconsideration is filed in the Court of Appeals. Under Wis. Stat. § 809.24, the motion for reconsideration must be filed within 20 days of the Court of Appeals decision. Thus, a motion for reconsideration is often still pending in the Court of Appeals when the petition for review is due to be filed in the Supreme Court, and because there are no extensions of time for the filing of a petition for review, attorneys and pro se litigants must prepare and file a petition for review without knowing the outcome of the motion for reconsideration. When the rules require the filing of potentially unnecessary pleadings, it is a waste of resources for attorneys, litigants, and the courts.

The new rules remedy this inefficiency by tolling the deadline for the petition for review pending the decision of the Court of Appeals on the motion for reconsideration. Wis. Stat. § 808.10(2). If a motion for reconsideration is timely filed, the 30-day time period for the filing of the petition for review begins on the date the Court of Appeals determines the motion for reconsideration by filing an order denying the motion for reconsideration or an amended decision.

The new rules also provide explicitly that if a motion for reconsideration has been timely filed in the Court of Appeals, no party may file a petition for review in the Supreme Court until after the Court of Appeals issues an order denying the motion for reconsideration or an amended decision. Wis. Stat. § 809.62(1m)(b). However, if a petition for review is filed and then a motion for reconsideration is filed, if the time for filing a response to the petition had not expired when the motion for reconsideration was filed, a response to the petition may be filed within 14 days of the order denying the motion for reconsideration. Wis. Stat. § 809.62(1m)(c). If the Court of Appeals grants the motion for reconsideration and files an amended decision, a party that filed a petition for review prior to the motion for reconsideration being filed must file a notice indicating either that the pending petition is affirmed (that is, remains pertinent), is withdrawn, or is amended (in which case an amended petition is filed) within 14 days. Wis. Stat. § 809.62(1m)(d). The responding party must file a response to the notice or amendment within 14 days. If the responding party had already filed a response to the petition, the response may be an affirmation of the earlier response. Wis. Stat. § 809.62(1m)(e).

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Federal Court Practice Tip: Time Computation for Appellate Filings Effective Dec. 1

On Dec. 1, 2009, amendments changing the time computation method for appellate filings will go into effect. The amendments adopt a “days are days” method of computing time limits. The amendments provide that intermediate weekends and holidays are generally counted in any time computation and, in many circumstances, that time periods (of less than 30 days) are changed to multiples of 7 days.

The amendments also make changes to Federal Rules of Appellate Procedure 4 (eliminating an ambiguity in Rule 4(a)(4) as to the effect of a motion on a notice of appeal), 22 (conforming the rule to changes proposed to Rule 11(a) for proceedings under 28 U.S.C. §§ 2254 or 2255), and 26(c) (clarifying the 3-day rule where the end of a time-computation period lands on a weekend or holiday). Finally, the amendments create a new Rule 12.1 (providing a procedure for an “indicative ruling” where relief is sought from a district court while an appeal is pending). These amendments as well as other rule changes can be found at www.uscourts.gov/rules.

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From Tricked-Out Brief to Persuasive Petition for Review

From Tricked-Out Brief to Persuasive Petition for Review

By Ellen Henak, Assistant State Public Defender

Most attorneys graduate from law school having written at least one, and often several, briefs. Very few graduate having written petitions for review. Not surprisingly then, too many attempts at writing petitions for review tend to look like briefs in the literary equivalent of evening gowns. They are dressed up arguments concerning errors in need of correction, rather than explanations of what deciding the case can do for the court system at large. How does a lawyer get his or her petition to make the leap from tricked-out brief to persuasive petition for review? One way is to think like a teacher.

The Wisconsin Supreme Court views itself as a teaching court, although it expresses this concept in legal terms. The Court has declared that its primary function “is that of law defining and law development.”¹ But the Court cannot just reach out and decide whatever it wishes to decide. Instead, the Court must have an actual case before it. The lawyer’s job in seeking review granted therefore is to convince the Court that: (1) at least one legal issue worthy of the Court’s time exists; (2) the case actually raises that issue; (3) the case raises no procedural or other problems that might prevent the Court from a full discussion of that worthy issue; and (4) the facts in the case aid in resolving the key points of law.

The first hurdle, convincing the Court of the existence of at least one worthy legal issue, is akin to convincing a school of the merits of a particular curriculum. Wisconsin Statutes (Rule) 809.62(1r) provides a list of guidelines that attempt to explain when a legal issue may be appropriate for review. The guidelines, however, do not bind the Court, do not control the discretionary decision whether to grant review, and are broad enough that virtually any case can be said to meet at least one of them to some extent. The merits of thinking of a case as a “the Court’s curriculum” is that it forces attorneys to consider the case’s implications to people other than the parties. An attorney who can think beyond his or her own case and, better, demonstrate the importance of the issues stands a much better chance of success in getting the Court to grant review.

A good writer, like a good teacher, remembers that showing is always more powerful than telling. Saying, “This issue comes up frequently within the court system,” is not very persuasive. Citing other cases that raise similar issues, even if that particular issue was not dispositive in that case or even if the case is from another state, will help demonstrate the frequency with which the issue arises² Citing newspaper articles whose facts or subject matter suggest more cases will be entering the court system soon may make an issue appear frequent, real, or significant. Citing such articles from across the state can show possible “statewide impact.”³ Citing scholarly articles, especially multiple recent articles, can suggest the significance of an issue or help the lawyer flesh out changing circumstances which require a change in law or policy.⁴ If an issue is novel, the attorney can explain its specific implications in other factual settings or in other areas of law.⁵ Including well-constructed hypothetical examples, especially in other areas of law when applicable, and explaining their relationship to the case also strengthens the argument. No rule bars discussing the implications of a procedure rule for contracts cases when the case at bar is a torts case or even a criminal case.

Showing, rather than merely telling, applies in other situations as well. If there is a split in authority on the question, a good petition for review will set forth the cases decided on each side in the court of appeals or even apparent inconsistencies in the Supreme Court’s own opinions.⁶ Citation to unpublished cases, regardless of date of their publication, is permissible to demonstrate a conflict between districts for purposes of seeking review.⁷ If the lower courts or courts of other jurisdictions also are split, so much the better. Lawyers can cite them as well.

In addition to the criteria and the reasons, information pertaining to the case below also can signal the importance of a legal issue or suggest the need for clarification. If the court of appeals decision is to be published, that court believed the case involved something more than “the application of well-settled rules of law to a recurring fact situation.”⁸ That court also believed that the issue was “not decided on the basis of controlling precedent and no reason appears for questioning or qualifying the precedent.⁹ A dissent in the court of appeals can indicate that the law is not well-settled.

Where does all this information go? Wis. Stats. (Rule) 809.62(2) requires a petition for review to state the reasons the Court should grant review. Heading the requisite section as “Reasons for Granting Review” rather than as “Statement of Criteria” helps remind the lawyer writing the petition of the need for broad thinking and will not result in rejection of the petition. The rule itself says that the petition must contain “[a] concise statement of the criteria.” The rule also contemplates that a case may not meet any of the criteria and, in such an instance, the requirement is that the petition include “a concise statement of other substantial and compelling reasons for review.” But the rule itself does not bar something broader as long as the writing is tight. “Concise” does not merely mean “very brief.” Instead, it suggests removal of anything superfluous.

But a strong, clear statement of reasons for granting review alone is insufficient to establish that a specific case is well-suited to use to teach lower courts about the law. Just as a teacher must be sure that the book he or she uses actually discusses the material that she wishes to cover with her class, the Wisconsin Supreme Court will want to assure itself that the case being presented actually raises the legal issues suggested in the reasons given for granting review and that no obvious procedural bars exist that would prevent the Court from reaching those legal issues.

A petition for review must contain “[a] statement of the issues the petitioner seeks to have reviewed, the method or manner of raising the issues in the court of appeal and how the court of appeals decided the issues.”¹⁰ Too often, practitioners will explain why their case is important but then draft their statements of issues either so broadly or so narrowly that the Court cannot see how review will serve the purpose that the petition claims it will. The attorney drafting the petition for review must ensure that this statement of issues, found at the very beginning of the petition, is fairly drafted to reflect that the case raises the issues urged as key to the broader view of the case. Typically, issues are stated as questions and are approximately one sentence in length. The more general the question looks, the less it appears as though the legal issues in the case are well-enough focused to be good teaching issues for Court’s below. “Was the defendant’s guilty plea invalid because it was not knowing, intelligent, and voluntary?” is insufficient. “Did the failure to understand party-to-a-crime liability render the defendant’s guilty plea unknowing?” is better. But avoid the trap of stuffing those questions too full of facts. An issue that appears to turn too much on a particular set of facts suggests that the issue in your case is not broad enough for review.

Selection of issues to raise in the petition for review also affects the teaching value of the case to the Court. Whenever possible, avoid long lists of issues. Long lists of issues suggest that the case is too complex to be a good example of any particular legal principle to the courts below. Raising an issue that, if resolved in your favor, could prevent the Court from reaching the more “interesting” issue makes a grant of review less likely. Thus, for example, if the state’s key argument for granting review of a court of appeals decision is based upon a need to develop the law concerning when a plain-view search is permissible, the state might increase the chances of a grant of review if it did not raise the issue whether the defendant had standing to challenge that search, especially if the standing issue has no broader implications beyond the particular case.

Lawyers should take care, however, that the requisite argument section of the petition,¹¹ does not undo what has been accomplished in the earlier sections. Sometimes, lifting the argument section from the brief is very tempting, especially because the timeline for filing a petition for review is so short.¹² But the argument section should explain the reasons for granting review and give enough flavor of the argument to allow the Court to determine whether the issues really are in need of resolution by the Court and whether the case fairly presents them. Simply lifting the argument from the brief without modification may lead the Court to believe that the petitioner is seeking error-correction. If review is granted, the petitioner will get ample opportunity to explain fully why his or her view of the law is the correct one.

Complex procedural history also raises questions whether the case presented is the proper teaching case for the Court. Skipping the procedural history is not an option as the petition must include the procedural status of the case and the disposition in the court of appeals.¹³ Nevertheless, a long and involved statement of the case often suggests an underlying procedural problem or that the issues may be unique to your procedural context. Occasionally, the procedure is the issue and the statement of the case will be key. But when it is not, lawyers who can simplify the procedural history down so it merely sets the context for the issues the attorney hopes to argue in the Court, and assures the Court that no pesky jurisdictional or other procedural questions are lurking, strengthen their petitions for review. 

Teachers, like the Wisconsin Supreme Court, want to know that any examples they give are as easy to understand as possible. No teacher attempting to teach adding is going to present a story problem in which Billy not only is given apples but also eats them. Similarly, the Court is more likely to grant review in a case involving largely undisputed facts so that the Court can focus on the legal issues. Making the statement of facts lengthy and convoluted hurts the likelihood of review because it suggests that the case is highly fact-specific. If possible, adopt the facts as the court of appeals saw them. If the facts appear undisputed, the chances of a grant of review increases. The rules require only that the statement include any facts “not included in the opinion of the court of appeals relevant to the issues presented.”¹⁴

Thinking like a teacher, as much as thinking like a lawyer, will help practitioners move beyond the narrow constraints of the case before them and improve their chances of getting petitions for review granted. The Wisconsin Supreme Court grants less than ten percent of the petitions for review that come before it. The lawyer’s goal is to convince the Court that the case at bar is a good vehicle for the Court to use to teach something about the law that would not otherwise be clear or to establish a new policy. Only then will the petition be granted and the client be given a full opportunity to explain to the Court why his or her view of the law is correct.

Endnotes

¹Cook v. Cook, 208 Wis.2d 166, 189, 560 N.W.2d 246 (1997).
²See, e.g., Wis. Stats. (Rule) 809.62(1r)(c)(3), in which part of the criterion is that the question of law is likely to recur.
³See, e.g., id. 809.62(1r)(c)(2).
⁴See, e.g., id. 809.62(1r)(e).
⁵See, e.g., id. 809.62(1r)(c)(2).
⁶See id. 809.62(1r)(d).
⁷State v. Higginbotham, 162 Wis.2d 978, 996-997, 471 N.W.2d 24 (1991).
⁸Wis. Stats. (Rule) 809.23(1)(b).
⁹Id.
¹⁰Id. 809.62(2)(a).
¹¹Id. 809.62(2)(e). The argument must be arranged in the order of the statement of issues presented.
¹²A petition for review must be filed so that it is received in the clerk’s office within thirty days of issuance of the court of appeals decision, unless a motion for reconsideration has been timely filed in the court of appeals, in which case the time runs from the denial of the motion or the issuance of an amended decision. Wis. Stats. §§ 808.10; 809.62(1m). This deadline is not extendable because the Court loses jurisdiction after the thirty days. St. John’s Home v. Continental Cas. Co., 150 Wis.2d 37, 43, 441 N.W.2d 219 (1989).
¹³Id. 809.62(2)(a).
¹⁴Id. 809.62(2)(d). 

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Judicial Recusal – Two Petitions on Deck for Wisconsin Supreme Court

By Anne Berleman Kearney, Appellate Consulting Group

The topic of judicial recusal is not only a hot topic these days because of the United States Supreme Court’s decision in Caperton v. A.T. Massey Coal Company, 129 S.Ct. 2252 (2009). Here, in Wisconsin, the Supreme Court has scheduled a public hearing for Oct. 28, 2009 on two petitions regarding judicial recusal – Petition 08-16, filed by the League of Women Voters of Wisconsin Education Fund, and Petition 08-25, filed by the Wisconsin Realtors Association, Inc.

Briefly, the League’s petition seeks amendment of the Code of Judicial Conduct providing for recusal when “a party in an action or the lawyer in an action has previously made a campaign contribution to or spent money on a media campaign relating to a judicial election for a judge who is presiding in the case.” Generally, the proposed disqualifying events are (1) a contribution amount of $1,000 or more, or multiple contributions of $1,000 or more within the preceding two-year period, by a party to the proceeding or attorney or law firm representing a party to the proceeding; (2) the funding in full or in part of a “mass communication” (defined specifically in the petition but including the transmission of 50 or more items) by a party to the proceeding or attorney or law firm representing a party to the proceeding; or (3) the funding in full or in part of a “mass communication” on the 60th day preceding an election until the date of the election by a party to the proceeding or attorney or law firm representing a party to the proceeding.

The Wisconsin Realtors’ petition, also briefly stated, asks the Supreme Court to amend the Code of Judicial Conduct so that “receipt of a lawful campaign contribution by a judicial campaign committee or an endorsement of a candidate does not, by itself, warrant judicial recusal.” Specifically, the petition proposes amendments to SCR 60.06(4), adding language, which states that receipt of a lawful campaign contribution will not, by itself, warrant judicial recusal, and the addition of a subsection (5) to SCR 60.06, stating that recusal of a judge is not warranted solely based on an endorsement or the receipt of a lawful campaign contribution, including one from a party to a proceeding.

Last month, the Board of Governors of the State Bar of Wisconsin decided to support neither petition. The formal position taken by the State Bar is as follows:

The Board of Governors of the State Bar of Wisconsin believes that neither petition 08-16 or 08-25 represent sufficient consideration of the scope of judicial disqualification matters and asks the supreme court to deny both petitions. The implications of judicial recusal, both from a practical implementation standpoint and a public confidence view, are such that the Court should reject both petitions and establish a study committee to review these and other judicial disqualification issues. The Court should move deliberately to establish greater guidance to judges through an enumeration of factors judges should consider in potential recusal situations and provide training for implementation of new standards.

Given the position of the Board of the Governors and the importance of this topic to attorneys as well as the general public, we expect a thoughtful discussion of these topics to continue. In particular, we invite you to take part in that discussion at the Oct. 30, 2009 conference at Marquette University Law School, co-sponsored by our Section, as well as the showcase program at the State Bar Convention in May 2010, also co-sponsored by our Section.

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